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Bergman guilty of contempt

Fined, gets symbolic imprisonment

Staff Correspondent
Dhaka-based British journalist David Bergman was found guilty of contempt yesterday by the International Crimes Tribunal-2 for his comments intended
to demean the court's authority.
The tribunal sentenced him to imprisonment till rising of the court and fined him Tk 5,000 under section 11(4) of International Crimes (Tribunals) Act, 1973.
However, instead of being sent to jail, Bergman had to stay at the court for the rest of the morning proceedings. He was allowed to leave seven minutes later when the session ended.
The tribunal asked Bergman, editor (special reports) of the daily New Age, to pay the fine within the next seven working days. Otherwise, he will have to spend seven days in jail.
The three-member tribunal led by Justice Obaidul Hassan found contempt elements in Bergman's blog posts on the war crimes verdict on Abul Kalam Azad, also known as Bachchu Razakar.
"We are of unanimous view that contemnor's intention was to scandalise the tribunal, by making unfounded and unfair criticism using scandalous 'words' and 'phrases' which have been admittedly deleted afterwards from the articles posted in his blog,” said yesterday's judgment.
The panel, including Justice Md Mozibur Rahman Miah and Justice Md Shahinur Islam, warned the journalist not to repeat such "malicious and prejudicial" criticism of historically settled issues.
The Tribunal-2 noted that Bergman was earlier cautioned bytheTribunal-1 in another contempt proceeding for disparaging comments about judicial affairs.
Though the relevant law does not permit a convict of contempt case to appeal against the tribunal's ruling, the defence said they will decide on the next move after getting the verdict's certified copy.
The proceedings began in April after the court found "prima facie elements of contempt" in Bergman's three write-ups posted in his personal blog in November 2011 and January 2013.
SC lawyer Abul Kalam Azad filed the contempt petition, attaching copies of the three blog posts, in which he questioned the Liberation War death tolls.
One article was on the indictment order of Jamaat leader Delawar Hossain Sayedee and other two on the verdict on Bachchu Razakar.
Bergman, in his post on Sayedee's indictment, made "relentless efforts to justify that the tribunal was absolutely wrong to mention three million were killed and 2,00,000 women raped in the 1971 war", the petition said.
He made "unfair1 and "scandalous" post-judgment criticism about the absentia trial of Bachchu intending to lower tribunal's authority by questioning the performance of its judicial duties, it added.
The defence, however, said Bergman's criticism fell under the "parameters of permissible fair criticism" and had been made "bona fide" and in good faith and public interest. Two portions of his two articles were deleted after getting con-
tempt notice, it mentioned.
But the tribunal yesterday said: "He [Bergman], as it appears, attempted to portray various conflicting information, citing sources, in respect of 'death figure in 1971' that creates a grave confusion on a sub-judice issue."
Bergman did not make any conclusion as to which information he considered accurate, the court said, adding, "Without going into accuracy of any of information why he opted to initiate a debate on a sensitive issue involving nation's emotion? Of course, his intention was not'fair'.
"... the criticism made on 'death figure in 1971' does not seem to have been made as one of'public interest'. Rather it has shaken and demeaned the emotion ofthe nation."
Bergman's lawyer Mustafizur Rahman Khan regretted hurting the emotion of the nation by making such criticism but the accused did not express any extent of remorse and repentance.
"... the contemnor either in his affidavit in opposition or in the written explanation submitted earlier did not prefer to express regret of any extent for hurting nation's emotion and aspiration. We too, being part of the nation, feel severe ache with this arrogant attitude of the contemnor."
"However," the court added, "It did not affect the merit of any of pending cases before the tribunals. Therefore, the criticism made on the issue of 'death figure in 1971' though does not consti-
tute any contempt."
The court said Bergman deliberately attempted to term it's observation on the issue of holding Azad's absentia trial "misleading" and it clearly intended to lower down and demean tribunal's authority.
As a journalist it was not his duties to design criticism questioning the authority and judicial ability of the tribunal, it added.
"Contemnor's attempt rather strikes a blow to the supremacy and authority of the tribunal and thus the effort he made was 'purposeful' that substantially endorsed the unholy campaign of some quarters to malign the judicial process of the tribunal. ”
The court also cited from a Bergman write-up published in International Justice Tribune, an independent fortnightly magazine, where he said the Liberation War was a war "between Pakistan army and Awami League supporters".
"We are surprised indeed how and on what basis David Bergman the contemnor who is a foreign national has been working in Bangladesh carrying such perverse mind set towards our War of Liberation and the trial process being held in the tribunals,” it said.
"It is not yet clear to us. However, we are not concerned with this matter. Let the government's authorities concerned make a lawful scan on this matter.”
Bergman was seated on the second
bench before the proceedings started at 11:15am but his lawyer was still absent. The court asked Bergman to move to the third bench and asked him not to write anything.
Bergman said he wanted to take notes as his lawyer was not present. At that, the courtsaid, "It's your fault."
At 12:13pm, when Justice Hassan was going to pronounce the sentence, he asked Bergman to stand up. The accused complied with the order and kept standing until the court completed reading out the verdict at 12:14pm.
After dealing with another case, judges left the courtroom at 12:20pm. Bergman and his wife Sara Hossain then went out
Later, petitioner's counsel Mizan Syeed said no one will now dare to raise any question about the Liberation War, 1971.
Bergman's lawyer Mustafizur Rahman Khan, who came to minutes after the delivery of the verdict, said, "We are shocked.
“We have to comply with the court order. However, we will decide on the next move after getting the certified copy ofthe verdict."
Sara Hossain, also an SC lawyer, said, "The judgement has curbed people's freedom of speech .... The verdict is a severe blow to the Liberation War spirit that endorses free thinking."
After the verdict Bergman said he was "shocked" by the order.
"It is likely to make it increasingly difficult for journalists and others to
comment on judicial proceedings and judgments in Bangladesh, even when those proceedings are completed," he told The Independent.
"And this should be of great concern to those interested in freedom of speech and proper scrutiny of state institutions in Bangladesh."
The court in its ruling said the right to freedom of speech as guaranteed in the constitution is not absolutely unfettered and it is to be exercised with some restriction and caution.
But Bergman has deliberately disregarded this restriction and caution, in exercising his right to freedom of expression, it observed.
"An individual or a journalist cannot have unfettered right to vomit his ill intent, in the name of right to freedom of expression ... But contemnor's conduct exceeded the limit and norms of civilityeven."
Tureen Afroz, a prosecutor of war crimes tribunal and law affairs secretary of Ekatturer Ghatak Dalal Nirmul Committee, called for enacting a law which would consider the denial of settled issues of the Liberation War as an offence.
Denial of established facts of Holocaust is a crime in most European countries, including Germany, she noted.
Earlier on June 9 last year, the Tribunal-2 jailed three Jamaat-e-Islami leaders after they were found guilty of contempt of court for their speeches at a rally.